Mashpee Wampanoag Tribe and rival spar over potential casino

Friday, March 25, 2016

Artist's rendering of the First Light Resort and Casino in Taunton, Massachusetts. Image from Steelman Partners / Mashpee Wampanoag Tribe

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As the Mashpee Wampanoag Tribe prepares to break ground on a long-awaited casino, a rival developer is hoping to gain approval for a commercial project less than 20 miles away.

Work on the First Light Resort and Casino in the city of Taunton is expected to begin in the next couple of weeks and the tribe is warning that a second casino in nearby Brockton will lead to economic repercussions for the state.

“The commonwealth would realize $28 million less in gaming-tax receipts with both a Taunton and Brockton casino than with a Taunton casino alone because there would be no revenue-share from the Taunton casino,” the Spectrum Gaming Group wrote in a report commissioned by the tribe, according to a press release.

The tribe agreed to share up to 17 percent of revenues with the state under its Class III gaming compact. That rate drops to 0 percent if the Brockton casino were to be approved.

The compact went into effect in February 2014 but the Brockton developer is raising a new argument about the agreement. Although it's considered legal by the Bureau of Indian Affairs, Mass Gaming and Entertainment now claims that it has not actually been "approved" and is therefore unenforceable.

"To even suggest that the tribe-state compact is not a valid agreement is a complete and total fiction,” Chairman Cedric Cromwell said in response.

The New England Casino Race: Tribal and commercial gaming facilities in Connecticut, Massachusetts and Rhode Island

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Mass Gaming and Entertainment is a subsidiary of Rush Street Gaming, a company owned by Neil Bluhm, whose net worth was pegged by Forbes at $2.9 billion. In addition to pursuing the Brockton casino, the firm is financing a lawsuit against the BIA for approving the tribe's land-into-trust application.

The tribe is not a defendant and can't be sued with its consent due to sovereign immunity. The gaming site in Taunton has been declared a reservation so the state, at this point, lacks jurisdiction there.

But Mass Gaming and Entertainment still believes the lawsuit can stop work on the casino, something that's highly unlikely, especially in the wake of the U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community.

If Littlefield v. Department of the Interior succeeded in striking down the BIA's approval, the state could presumably take action against the tribe for building or operating the casino. The Supreme Court's May 2014 decision, however, only allows tribes to be sued by states for activities that occur on "Indian lands" -- a definition that only holds if the Taunton site remains in trust.

The state otherwise lacks the same type of authority it has over activities on the reservation of the Aquinnah Wampanoag Tribe, whose sovereign rights have been severely restricted by federal and state court interpretations of a land claim settlement that the Mashpee Wampanoag Tribe is not bound by.

The Massachusetts Gaming Commission is holding one final meeting on Monday to discuss the Brockton proposal. A decision is expected sometime in April, according to a timeline.

Get the Story:
Tribe's study says 2 casinos in region would cost state $28M per year (The Brockton Enterprise 3/25)
Brockton casino group addresses revenue, legal issues as commission makes decision (The Brockton Enterprise 3/25)
Christina Bitter and Abim Thomas: If Two’s A Party, Is Three A Crowd? MGC Community Hearing on Proposed Brockton Casino (JD Supra 3/24) $P Federal Register Notices:
Proclaiming Certain Lands as Reservation for the Mashpee Wampanoag (January 8, 2016)
Land Acquisitions; Mashpee Wampanoag Tribe (September 25, 2015)
Final Environmental Impact Statement for the Proposed Fee-to-Trust Transfer of Property and Subsequent Development of a Resort/Hotel and Ancillary Facilities in the City of Taunton, MA and Tribal Government Facilities in the Town of Mashpee, MA by the Mashpee Wampanoag Tribe (September 5, 2014)
Indian Gaming (February 4, 2014)

Relevant Documents:
Chairman Cedric Cromwell Announcement | Mashpee Wampanoag Trbe Press Release | Bureau of Indian Affairs Press Release | Assistant Secretary Kevin Washburn Letter to Chairman Cedric Cromwell | Record of Decision

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)